law society criminal justice report_v5 (2)
Post on 07-Apr-2018
216 Views
Preview:
TRANSCRIPT
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
1/44
Improving efficiency
in the criminal justice system:
a new approach5 October 2011
supportingsolicitors
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
2/44
Improving efficiency in the
criminal justice system
2 www.lawsociety.org.uk
1. During February and March 2011 the Law Society conducted a series of seminarsin London, Bristol, Newcastle, Leeds, Birmingham, Cardiff and Plymouth. Their
purpose was to provide an opportunity for local criminal justice practitioners to
identify and discuss the rubbing points in the criminal justice process in their
area, and to consider possible solutions to these inefficiencies. The events were
attended by defence and prosecution solicitors, Chief Crown Prosecutors, Crown
Prosecution Service (CPS) staff, barristers and Magistrates court staff. TheLaw Society gratefully acknowledges the extensive assistance that Ian Kelcey,
then Chair of its Criminal Law Committee, has given to this project.
2. In this time of severe financial restraint throughout all publically funded
institutions, including those involved in the criminal justice system, it isessential to ensure that any unnecessary delays and costs are eliminated. The
Crown Prosecution Service is facing a cut in its budget of 24% in the next fouryears; a recent Legal Aid Green Paper proposed cuts in funding available for
criminal defence services. If systems and procedures can be improved and
made more efficient, particularly through the use of information and
communication technology, it is essential, given the current economic climate,that these improvements are made.
3. The overarching theme, common to all the discussions throughout England and
in Cardiff, was the need for there to be much better communication between
the prosecution and the defence, to allow the early service of prosecutionpapers and for the defendants instructions to be taken at an early stage, and
thus to make the criminal justice system as efficient and as cost-effective as
possible. The prosecution should ensure it provides information to the defence
in a timely manner so that the first hearing can be effective, and can enable the
defence to make informed decisions about the conduct of the case. Defencepractitioners should not be required to make case management decisions
without proper and timely disclosure.
4. Other key changes that participants suggested should be implemented, all of
which the Law Society supports and calls on those responsible to implement,are:
Improved communication
Devise systems that will enable defence solicitors to communicate quickly
and effectively with Crown Prosecution Service solicitors or staff in relation
to individual cases, in order to discuss matters of dispute in contested
cases, or the basis of an acceptable guilty plea;
Simplified trial preparation form Simplify the Magistrates Court Trial Preparation form, and ensure that
courts will only require it to be completed in appropriate cases, and at a
stage in the proceedings when parties can provide meaningful responses;
Electronic legal aid applications
Allow applications for legal aid to be made using electronic means, either
by email or on-line, and allow verification by way of clients electronicsignatures;
Use of shared computer servers to view evidence
Develop a system whereby items of electronic evidence, such as CCTVfootage and police records of interview, can be loaded onto a central
computer server, to allow prosecutors and defence solicitors to view such
evidence by use of a password;
Introduction
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
3/44
3www.lawsociety.org.uk
Defence solicitor access to technology
Require the police to allow defence solicitors who attend clients in police
stations to have access to mobile phones and computer equipment to
facilitate efficient working;
Improved prison visiting arrangements for defence solicitors
Require that all prisons are aware of their duty to provide for sufficient
professional visiting time; ensure that security measures applicable to legalvisitors are proportionate and do not waste time; and require prisoner
movements to be communicated to booked legal visitors to avoid wasted
journeys. In addition, the Prison Service should allow solicitors access to
computer equipment when attending clients in prison custody.
5. Prior to the seminars, the Law Society conducted a Web survey of solicitorsworking in the criminal justice system to identify the reason/s for any delays
affecting their cases during a two-week period in November and December
2010. The findings of the survey as to the reasons for delays the blockages
that detract from better efficiency in the criminal justice system closely
mirror the frustrations expressed by those taking part in the road show
discussions. These include an inability to obtain timely information from theopposing party, most often the defence from the prosecution, difficulties in
visiting clients in custody, delays in the processing of legal aid applications, and
an overall lack of effective communication throughout the process.1
6. The Law Society is confident that, if implemented, these changes will have thecapacity to generate significant savings for all the agencies who participate in
the criminal justice system, without detracting from its fairness. While it is
difficult to estimate the quantity of the savings the changes could generate, in
its response the Ministry of Justice Green Paper on proposals for the reform of
legal aid in England and Wales the Law Society conservatively estimated that 9million per annum could be saved to the legal aid fund alone by reducing waste.
This figure is based on cutting out one unnecessary delay or adjournment that is
caused by a failure in the system other than on the defence side, for every two
representation orders granted, and with each hearing costing on average 40
(one half of 450,000 representation orders per annum, at 40 each). 2
7. Some of the procedural changes suggested by those who contributed this project
were recommended in the Law Societys Access to Justice Review, published in
November 2010. It recommended the promotion of effective case management,
the abolition of the police station call centre, and a review by the CPS of the
charging and prosecution of very complex and costly cases. Many of the ideasarising in the course of the road shows for improving procedural efficiency echo
these recommendations.
8. This report is structured to set out a number of the issues and ideas for
improvement that were discussed in the order that the criminal justice processnaturally takes place, from the police station, the pre-court stage and then the
court process. It then notes a number of more general issues that were raised.
1 A report of the survey results is published in this report or available online at
http://www.lawsociety.org.uk/new/documents/2011/criminal-justice-survey-results-feb2011.pdf2 See Annex A - savings from Law Society Measures, at http://www.lawsociety.org.uk/secure/file/192196/d:/teamsite-
deployed/documents/templatedata/Internet%20Documents/Government%20proposals/Documents/alternative-savings-legal-
aid.pdf
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
4/44
Improving efficiency in the
criminal justice system
4 www.lawsociety.org.uk
9. It was felt by defence practitioners who attend police stations that the DutySolicitor Call Centre has in fact created a hindrance to effective communication
between defence solicitors and the police. It was suggested that it would be
better to revert to the former system whereby the police simply contact the
solicitor directly. Where a case is out of scope of the duty solicitor scheme and
is only able to have telephone advice the solicitor contacted by the police could
refer the matter to a small telephone advice service.
10. Solicitors require the ability to use mobile phones and computer equipment
whilst in police custody areas. This is, firstly, to ensure that they can work as
effectively as possible while at the police station in taking instructions and
looking up the law on-line; and secondly, to be able to communicate withothers, in particular those instructed as advocates to attend court the following
day.
11. Where the client is placed on pre-charge police bail with a requirement to re-
attend at the police station for further investigation or charge, the police shouldbe required to communicate with the instructed duty solicitor where the police
officer becomes aware that the further investigation, or charge, cannot take
place on the subsequent occasion. Practitioners expressed great frustration
about occasions where their client was bailed back to the police station, often
on multiple occasions, only to find the matter was not progressed. Police
officers failure to communicate with solicitors results in great deal of wastedtime.
12. Practitioners stressed the importance of the provision of early legal advice at
the police station as a means to improve the efficiency of the criminal justice
system. It ensures that the defendant comes into contact with their solicitor atan early stage of the case, and there is more likelihood that they will receive
legal advice prior to their court attendance, rather than seeing a solicitor for
the first time in court and asking them to represent them, or having to rely on
the busy duty solicitor.
13. Rural practitioners raised the fact that the escape amount was not also
reduced when the fixed police station fee was reduced. The fixed fee does not
apply to certain exceptional cases, but rather an ex post facto fee may be
charged due to the complexity and length of time involved on the particular
case at the police station. Although the fixed fee was reduced from 247 to200, in order to qualify for the escape ex post facto fee the amount of time
involved is still required to exceed an amount equivalent to three times 247,
rather than three times 200. This has led to a feeling that rural practitioners
are being unfairly penalised.
Police station attendance
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
5/44
5www.lawsociety.org.uk
14. In some regions it was noted that there were significant delays in relation to thegranting of legal aid. London was the worst example, where the delays could be
anything from 4 weeks to 3 months. There were further examples of delays of a
week or two in Wales, and in parts of Cornwall. In other areas, legal aid was
granted almost instantaneously upon the application been made to, and
processed by, the court, including application of means test procedures.
15. The areas where there was greatest difficulty are those that utilised a
centralised assessment centre for the means test, and where court clerks are
not responsible for the interests of justice test.
16. In addition, there is an unfair transfer of risk to the defence solicitor where the
decision is not made in a timely fashion. For example, a solicitor may be
informed by their client that they are likely to be eligible because they are inreceipt of a passported benefit, but subsequently the solicitor finds out, some
weeks later due to the delay in processing the application, that the client has
provided false information and is not in fact eligible. This creates reluctance onthe part of defence solicitors to engage in work on a defendants case at an
early stage before a grant of legal aid is confirmed.
Post-police station, pre-court
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
6/44
Improving efficiency in the
criminal justice system
6 www.lawsociety.org.uk
17. There were clear differences throughout the country in the ability of the CrownProsecution Service to provide the defence solicitor with disclosure of the
prosecution case in a timely fashion before the first hearing.
18. At one meeting, it was suggested by the CPS that where they were able to
ascertain the identity of the defence solicitor present at the police stationstage, they should be able to email that solicitors firm with the Advance
Information in that case, which, at that stage, would comprise the statements
on which the decision to charge the defendant was made. If it transpired that
solicitors firm were not in fact instructed subsequently, the firm could transfer
the information to the instructed solicitor, on request, electronically.
19. Throughout the seminars the Law Society promoted the take up of secure email
by defence solicitors. It was, however, pointed out on several occasions bysolicitors who had signed up to the secure email system that they had not in
fact had any documents served on them by secure email at all. It seems there
may need to be a culture change towards using electronic communication in theCPS, as well as amongst the defence community. Some defence practitioners
said that the CPS had been unwilling to provide their secure email addresses,
which obviously frustrated communications by this means. In one instance, this
caused one firm that had signed up to the secure email system to cease using it.
20. While the overall benefits of communicating with the CPS by secure email were
recognised, there was an underlying concern that this could involve a transfer of
printing costs from the CPS to defence firms. It was pointed out that greater
efficiency and ease of communication would be likely to lead to less
adjournments, and thus to greater efficiency overall in the long term.
21. Many defence practitioners spoke of the desirability of being able to makeclients legal aid applications electronically, either by email or on-line. This was
identified as one very sure way to speed the process up dramatically. This could
involve the use of an electronic signature device for the client to sign theapplication. It was suggested that even being able to fax legal aid applications
would be advantageous. Neither of these methods are currently permitted, and
the normal postal service must be used to submit application forms.
Disclosure
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
7/44
7www.lawsociety.org.uk
22. It was noted there is a wide variation around the country in the time betweencharge and the first appearance in court, varying at the most between 5 and 6
weeks, to as little as 3 to 4 days. A standardisation of the period between
charge and first appearance would be welcome. It was felt the period should
allow sufficient time to complete the tasks that must be completed, by both the
prosecution and the defence solicitor, in order to ensure that the first hearing is
effective. Too little time between the point of charge and the first appearancecan have the effect that solicitors will err on the side of caution and advise the
defendant to enter a not guilty plea at their first hearing, simply because they
are not in possession of sufficient information to properly advise.
23. Defence solicitors reported a sense of frustration that CPS staff often do notrespond in a timely manner to letters of representation from defence solicitors,
or to requests and orders made by the court. Letters and court orders are notresponded to within the timetable set down by the court. Fears were expressed
that with the significant cuts that will be made to the CPS budget this situation
will only get worse, and result in even greater inefficiency. It was felt that use
of secure email may assist this decision-making process, but only if the CPS canmake the necessary culture change, and organise systems for working with
secure email so that it can operate effectively.
24. There was a consensus common to all attending the meetings, whether
prosecutor, court staff or defence solicitor, that the completion of the currentsix page Criminal Procedure Rules Magistrates Court Trial Preparation Form at
the first hearing is unworkable. Two Clerks to Justices in different regions
independently suggested it would be better to have a meaningful pre-trial
review in matters listed for trial in the Magistrates Court, similar to a Crown
Court Plea and Case management Hearing (PCMH), between the first hearingand the trial date, at a time when the solicitor has been able to take
instructions and with legal aid granted. Such a hearing would force the
defendant to come to court to have contact with his or her defence solicitor. It
was noted that very often a defendants attendance at court, when the defence
solicitor or advocate is in full possession of the facts of the case and is able to
provide robust advice, can result in a realistic re-evaluation of their plea. Ifappropriate, the case could be transferred immediately to a guilty plea court.
It is suggested this may lead to a significant reduction in the number of cracked
trials in the Magistrates Court.
25. It was considered that generally the Crown Court listing system works in a moreefficient way, because the PCMH takes place some time after the service of
prosecution papers, thus allowing an opportunity for the defence solicitor and
the advocate to consider the papers with the defendant. This may be a pointerto the way in which Magistrates Courts could be encouraged to conduct their
business.
26. In many Crown and Magistrates Courts, practitioners reported frustration at the
delay in transferring prisoners from the cells into the court rooms. The previous
practice of having prisoners waiting on the landing outside the court room seems
to have disappeared. Although the delay in each case may be quite small,
cumulatively it adds up to a significant amount of time being wasted in eachcourt, of approximately an hour per day.
At the court stage
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
8/44
Improving efficiency in the
criminal justice system
8 www.lawsociety.org.uk
27. It was suggested that Crown Court trials would be better accommodated withfixed lists rather than there being a number of floating trials. This would
cause less inconvenience to all parties, and, importantly, to the witnesses
involved in the case. This would also promote case ownership where the
advocate instructed in the case is the same advocate who appeared at the
PCMH, it is more difficult for case preparation tasks to drift. This would also
benefit CPS advocates, because they would be more likely to have the caseprepared before the day of trial. Fixed listings would therefore result in fewer
cracked trials.
28. In one meeting concern was expressed about a judicial directive that counsels
availability should not be taken into account when setting trial dates. This hasadversely affected both CPS and defence counsel, and has acted as a
disincentive for advocates to engage in early trial preparation.
29. It was noted that Bristol is adopting a similar system to the Liverpool Early
Guilty Plea Pilot. This is to be very much to be welcomed in straightforwardcases. There will, however, unavoidably be cases where this procedure will
provide fewer benefits because of the need for basis of plea discussions and
agreement, the need to take into account the late service of prosecution
papers, and issues around accessibility to the clients in prison.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
9/44
9www.lawsociety.org.uk
Streamlined Forensic Reports
30. CPS representatives indicated that the CPS will be moving towards the
streamlining of forensic reports, whereby a basic report would be provided in
most cases, with a more detailed report only sought where the defence identify
the areas of dispute with regard to the expert evidence. This was generally
welcomed by the defence community.
Difficulties with Prison Visits
31. Access to clients in prison is a major problem and cause of delay. There is a
wide variation in different prisons ability to accommodate defence solicitors
visits. In some areas of London there could be a waiting list of up to a month,
and in other areas the waiting time varied between 1 week and 4 weeks. Thissignificantly hinders the early preparation of cases.
32. Further frustration occurs as a result of delays at the prison, which reduces the
available time the solicitor has to spend with their client. This is caused by
priority being given to social visits, and on occasions, prisoners not being at the
establishment in question because they have been moved without the defence
solicitor being notified. This problem is exacerbated further in high securityprisons, which have extremely complex security arrangements which appear to
be meaningless and ineffective, for example requiring solicitors fingerprints to
be taken on four occasions over a distance of less than 60 yards.
33. Concern was expressed that the efficiency gains that will hopefully result fromthe electronic service of prosecution evidence will not be realised if prisons
maintain their reluctance to allow electronic devices to be taken into prisons, toshow defendants the electronic prosecution evidence and to make solicitors
consultations as efficient as possible. This issue also applies in relation to the
use of such equipment in cell complexes at both Magistrates and Crown courts,and as previously referred to, in police stations.
CCTV evidence
34. The increasing use of CCTV evidence, and the fact that it is produced in a
number of different formats, leads to difficulties with accessing and viewing this
often very significant evidence by the defence. It was suggested by a
representative of the CPS that downloading this material onto a central CPS
server, with password access provided to defence firms, may ameliorate some of
these difficulties. Records of police interviews could also be centrally held and
accessed in this way.
General points
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
10/44
Improving efficiency in the
criminal justice system
10 www.lawsociety.org.uk
Defence solicitor engagement
35. The defence community reported that they continue to feel undervalued by
government policy makers, a fact evidenced by the apparent unwillingness of a
number of Local Criminal Justice Boards (LCJBs) to invite the involvement of a
representative of the defence solicitor community, and further evidenced by the
statutory restriction on defence solicitor membership of the National CriminalJustice Board. The point was made that, while defence solicitors cannot bind
their colleagues, they have a very wide breadth of knowledge and experience of
the criminal justice system and they are the only agency that is involved in the
case from the beginning at the police station, right through to its end in court.
The presence of defence solicitors on LCJBs could lead to much more accurateassessments of, and solutions to, inefficiencies that can occur in the criminal
justice process.
Planning for an electronic criminal justice system
36. With the clear CPS intention to move towards to a completely electronic way of
working by April 2012, the Law Society strongly suggests that it would be
sensible to establish a high-level criminal justice technology group, involving all
relevant agencies and including representatives of the defence community. Thiscould ensure joined-up thinking and hopefully allow all participants to be able
to fully realise the benefits of e-working, as progress is made towards the CPS
target date. This should also enable the various agencies to consider the cost
transfers that may occur and which may not be apparent, and to establish if
there is an overall business case for the progress of information technology
within the criminal justice system.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
11/44
11www.lawsociety.org.uk
Executive Summary
This report presents findings from a web survey with criminal practitioners. The survey
collected information from a two week period in order to assess where significant
delays were occurring and to whom such delays were attributable. A total of 245
individuals completed the survey; of these 231 submitted answers online and 14
returned hard copy versions. Included in participants were 55 individuals working as
prosecutors and 172 individuals working as defence solicitors.
Just 8.7% of all respondents reported that they had experienced no delay at all
in their cases over the past two weeks.
For 25.3% of all respondents who had encountered delays, the most significant
delays were attributed to the police.
Nearly one half (45.4%) of all respondents had faced delay related to police bail
back. This was a significantly greater problem for defence solicitors and was
cited by 52.3% of all defence respondents, compared with just 1.8% of all
prosecutors.
Police were criticised for not providing the required Advance Information in a
timely manner. For prosecutors this had been the cause of delay in 14.5% of
their cases, whereas for defence solicitors this rose to 35.5%.
Defence solicitors were often unable to take instructions from a defendant who
was being held in custody and this had been an issue for almost one third
(31.9%) of all respondents; and specifically, had caused delay for 40% of
prosecutors.
Delay in the transportation of prisoners was cited by 70.2% respondents who
were left waiting for the prisoner to arrive at the courthouse, and 52.9% left
waiting for the prisoner to be brought from cells.
Commonly, it could take up to ten minutes for a defendant to be brought from
the cell area once a case had been called. This delay was an issue for 24.4%
defence solicitors and 12.7% of prosecutors. This may not seem a significant
delay on its own, but the accumulation of such delays across the day was cited
as a major problem.
A witness failing to attend court at the correct date and time was a common
occurrence and also a frequent cause of delay (cited by 32.7%).
Over one third (39.8%) of respondents had experienced delays when the
prosecutor left the courtroom to call their own witnesses.
Delays attributed to multiple cases being listed at the same time were cited by
45.5% of prosecutors and 44.8% defence solicitors.
The Probation Service was criticised for not supplying pre-sentence reports in a
timely manner. This was an issue cited by 34.3% of all defence solicitors and
14.5% of prosecutors.
An overall lack of communication was seen to pervade the entire process.
Web Survey of Criminal Practitioners on
the causes of delay and inefficiency in
the criminal justice processFebruary 2011
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
12/44
12 www.lawsociety.org.uk
During November and December 2010, the Law Society conducted a web survey to
capture criminal practitioners experiences and views on delays in their cases and the
Criminal Justice System. The web survey collected information from a two week period
in order to assess where significant delays were occurring and to whom such delays
were attributable. The survey offered freetext spaces for practitioners to explain in as
much detail as appropriate where they had encountered problems in the current
police, defence/prosecution and court processes. A total of 245 individuals completed
the survey; of these 231 submitted answers online and 14 returned hard copy versions.
The survey questions appear at appendix 2.
A note of caution
The nature of web surveys means that it is not possible to control who sees or respondsto the survey. The web link was available to anyone who received Professional Update
or who happened across the page on the Law Society web site. In addition, the Society
approached a number of organisations to help raise awareness and attract participants
to the survey. These included: the CPS, who promoted the survey on their intranet, the
Criminal Law Solicitors Association and the London Criminal Courts Solicitors
Association. Hence, because we do not know the total number of people who
potentially could have completed the survey, it is not possible to generate a response
rate.
Whilst 245 is a positive number of completions, when compared to the results of other
web surveys, it must be remembered that where percentages are used in this report,
they refer to this select group of 245 individuals and cannot be seen as representative
of the wider field of all criminal solicitors. Equally, web survey participants tend to beself-selecting and this is usually because they have particular issues in relation to the
topic which they wish to raise.
The base number at the bottom of tables and charts refers to the number of individuals
who provided a valid answer to that particular question. A range of freetext comments
have been included where appropriate. Survey sponsors will have access to the full list
of all freetext comments.
Web Survey
1. Methodology
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
13/44
13www.lawsociety.org.uk
Participants comprised 55 individuals working as prosecutors, 172 individuals working as
defence solicitors and a further 10 who selected other. It is important to remember
whilst reading the results which follow, that some 70% of all respondents are defence
solicitors and this, therefore, biases results to a certain extent towards the defence
perspective.
Table 1: Participants role
Participants had been practising as a criminal solicitor for a mean of 12.9 years. The
longest serving criminal solicitors had been working in this field for around 40 years,
whilst the newest entrants had been in post for just a couple of months.
Individuals were based in a variety of regions across the country (see Table 2). The
majority worked in Greater London (21.3%); a further 12.8% worked in the City of
London. Outside of London, participants were most likely to be based in the South-
East, North-West or West Midlands (13.2%, 10.2% and 10.2%, respectively).
Table 2: Regional location of participants
2. Participants
no. %
Defence solicitor 172 72.6
Prosecutor 55 23.2
Other 10 4.2
Total 237 100.0
[Base 237]
no. %
City of London 30 12.8
Rest of London 50 21.3
South East 31 13.2
North West 24 10.2
West Midlands 24 10.2
East Midlands 19 8.1
South West 18 7.7
Yorkshire and Humber 16 6.8
North East 9 3.8
Wales 9 3.8
Eastern 5 2.1
Total 235 100.0
[Base 235]
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
14/44
The survey required criminal solicitors to record their experiences across the previous
two weeks in respect of any delays they had encountered in their cases. Extracting two
weeks in this manner risks bias to findings if the events of the past two weeks are in
some way extraordinary or not typical of the experiences criminal solicitors would
usually encounter. Therefore, participants were asked to rate on a scale of 1- 10,
where 10 is completely typical and 1 not at all typical, how typical these two weeks
had been for them.
Chart 1: Typicality of the past two weeks cases
For 44.9% of all respondents the past two weeks had been completely typical of their
usual case experiences. Just 13% of respondents rated 5 or under, indicating that this
week had not been typical for them. With a mean score of 8.34 it can be reasonably
assumed that the findings reported here are typical of the day-to-day experiences of
these criminal solicitors. Although caution should still be exercised at any attempt to
generalise too far beyond the views of this discrete group of self-selectingparticipants.
Web Survey
14 www.lawsociety.org.uk
[Base 237]
0% 20% 40% 60% 80% 100%
1
2
3
4
5
6
7
8
9
10
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
15/44
15www.lawsociety.org.uk
Just 8.7% of all respondents reported that they had experienced no delay at all in their
cases over the past two weeks. For the remaining respondents, delays were most often
attributed to the police (by 25.3%) or the prosecutor (24.9%). Since the majority of
respondents were themselves defence solicitors it comes as no surprise that
prosecution solicitors fair badly, and that defence solicitors were held accountable for
delays by only 4.5% respondents.
Chart 2: Who is responsible for the most significant delay?
Chart 3, below, attempts to mitigate for this bias by presenting the results according to
the role of the respondent. Again the police are deemed to cause the most significant
delays overall by 26.7% of defence solicitors and 21.8% of prosecutors perhaps
because they are so near the start of the process. Both prosecutors and defence
solicitors also agreed that court staff are responsible for significant delays (18.2% and
17.4% respectively).
Differences occur in respect of roles where, as Chart 3 illustrates, solicitors were prone
to blame the opposing counsel for delays.
3. Findings
10%
4%
3%
5%
29%
29%
20%
Police
Court Staff
prosecution solicitor
defence solicitor
prison transport
lay magistrates
Other
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
16/44
Chart 3: Who is responsible for the most significant delay, by role of respondent.
Charts 4 and 5, below, indicate the regions in which prosecutors and defence solicitors
(respectively) have experienced delays.
Prosecutors working in the West Midlands were most likely to have experienced delaysin the past two weeks (given by 21% prosecutors), followed by those working in the
North West or Yorkshire and Humberside, where in each region 17% of prosecutors had
faced delays. Only 2% of prosecutors working in the City of London or in Wales reported
delays.
Chart 4: Delays experienced by prosecutors, by region
Web Survey
16 www.lawsociety.org.uk
30
25
20
15
10
5
0
police court staff prosecutor
Prosecutor
Defence Solicitor
defencesolicitor
17%
17%
15%
21%
0%
2% 2%5%
7%
7%
7%
7%
%
7%
City of London
Rest of London
South East
North East
South West
North West
East Midlands
Eastern
West Midlands
Wales
Yorkshire/Hum
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
17/44
17www.lawsociety.org.uk
Conversely, the Criminal Justice System in the City of London had resulted in delays for
15% of defence solicitors. The majority of delays for defence solicitors had occurred in
the rest of London, cited by over one quarter (26%) of all defence respondents; delays
in this region had only been a problem for 5% prosecutors.
Chart 5: Delays experienced by defence solicitors, by region
3.1 Delays attributed to the Police
The vast majority of respondents (83.7%) had dealt with the police on at least one
occasion in the past two weeks.
Table 3: Delays attributed to the Police
City of London15%
15%3%
4%
8%
9%
9%
5%
5%
1%
26%
Rest of London
South East
North East
South West
North West
East Midlands
Eastern
West Midlands
Wales
Yorkshire/Hum
15%
9%
8%
no. %
On accompanying a client who has been bailed back
to the police station, the police require further time. 94 45.4
The police have not provided the required Advance
Information to the CPS to enable serving it on the
defence in time for an effective first hearing. 72 34.8
The police have failed to arrange an interpreter to
attend court. 52 25.1
No interpreter available at the police station. 27 13.0
Other reason. 105 50.7
[Base 207]
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
18/44
The most commonly cited cause of delays, expressed by nearly one half (45.4%) of
respondents to this question was that on accompanying a client who has been bailed
back to the police station, the police required further time. This was a significantly
greater problem for defence solicitors and was cited by 52.3% of all defence
respondents, compared with just 1.8% of all prosecutors. Individuals explained:
Client bailed to return to police station at 10.40am. I arrived in good time and
the client arrived precisely two minutes after me. The OIC did not invite the
client and I into the Custody Suite until 11.42am. Furthermore, at 10.50am, ten
minutes after the bail appointment time, the OIC was still at another police
station and had not even started to travel. This is despite the fact that it was
the OIC who wanted to conduct a further interview in the first place.
Not organised for Bail backs; Give times and still officers not in attendance for
bail backs especially. Still gathering evidence!
The most consistent delays appeared to be attributable to an overall lack of
communication. Respondents were particularly dissatisfied because they were obliged
to turn up at the time quoted to them by the police, but were then left hanging around
on the polices time frame:
Officer in the case never return calls, therefore we never know whether there is
to be a second interview etc. We have to guess as to whether to attend thus
causing us financial loss. This is because we may have employed solicitors at
court and therefore have to employ agents to cover (who charge 90).
The police also refuse to give even an approximate indication of what time aninterview is likely to take place, but then when they are ready expect the
solicitor to jump and be there immediately. Often this is not possible and
further delays are caused. Often they will say they are ready for interview and
then leave the solicitor sitting at the SDO for hours. There appears to be no
time management at all and any attempt to expedite things by the solicitor is
met with hostility.
Papers turning up late Papers for custody cases turning up incomplete General
hanging around in the custody block waiting for officers to attend for interview
when we have been told to get there for a particular time
The delays caused by the polices lack of communication with the solicitor or their
failing to be ready at the time arranged with the solicitor had financial implicationsbeyond the inconvenience of wasted journeys and hanging around:
Attending police station. Police have not obtained the appropriate advice
regarding charging with the Crown Prosecution Service, and therefore, WAITING
TIME, which is not paid under the fixed fee system.
I work predominantly in defence work at the police station. Some of the delays
caused by the police are genuinely outrageous. I am not necessarily suggesting
that the delays are deliberate but there increasingly seems to be the attitude
that it is perfectly alright to have a solicitor sitting in a waiting room or the
front office for an hour or more. One believes that the police are all too aware
of the fixed fee system these days! Waiting was not such a chore when you were
being remunerated but in the present market even a straightforward case canbecome a money pit if the waiting time stretches on endlessly.
Web Survey
18 www.lawsociety.org.uk
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
19/44
19www.lawsociety.org.uk
Over one third of all respondents (34.8%) were critical that the police had not provided
the required Advance Information in a timely manner. The impact of a delay here was
felt by both prosecutors and defence solicitors. For prosecutors this had been the cause
of delay in 14.5% of their cases, whereas for defence solicitors this rose to 35.5%.
3.2 Delays attributed to the prosecutor
Just under one quarter of respondents (22.0%) claimed to have had no dealings with
the prosecution in the past two weeks though this proportion includes those who are
themselves prosecutors and, therefore, would not necessarily indicate that they had
been responsible for a delay or have encountered prosecutor-caused delays.
Table 4: Delays attributed to the prosecutor
The most commonly cited cause of delay was that the prosecutor had failed to comply
with their disclosure obligations, mentioned by 64.9% respondents. This failure had
caused delays for 51.2% of all defence solicitor respondents. However, freetext
responses to the previous question suggest that, in at least some of these occasions,
the prosecutors delay could be attributed to the fact that they were waiting on the
police to provide such information. Defence solicitors were still critical of a lack of
timely disclosure:
no. %
Prosecutor failed to comply with disclosure obligations 124 64.9
Prosecution representative at court without file 113 59.2
Prosecutor failed to comply with court order 98 51.3
Prosecutor failed to give proper instructions 46 24.1
Prosecutor called away in a supervisory capacity 30 15.7
Prosecutor failed to arrange an interpreter 28 14.7
Other 63 33.0
[Base 191]
Out of all the difficulties we have with the prosecution, which leads to delay, is
the lateness or lack of disclosure.
Promised disclosure has not arrived Disclosure served is unviewable Reviews
have not been carried out Papers not available in time for the hearing.
Failing to oblige Court Orders especially for disclosure.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
20/44
Prosecutors were also criticised for turning up to court without their file and for failing
to comply with a court order (by 59.2% and 51.3%, respectively).
The use of Associate Prosecutors (AP) contributed to delays for two reasons. Firstly
where the AP had been assigned to a case without authority to make a decision and,secondly, where senior prosecutors were called away from other courtrooms to assist
an AP or act in a supervisory capacity:
Prosecutor respondents indicated that in some instances delays had been caused due to
a lack of staff:
Web Survey
20 www.lawsociety.org.uk
Losing files, not telling defence of adjournments made administratively and
letting defence attend court when no need.
Four hours waiting for prosecution file to be brought to court.
Courts being dealt with by APs who cannot deal with youths in custody or bad
character/special measures applications therefore having to wait for a lawyer to
attend court or become available to deal. APs having to delay court to take
instructions from a lawyer on bail decisions or representations made on pleas.
In the remand court, unfortunately the Crown are represented by Associate
Prosecutors who do not have the power to review/making decision on charging.
This has meant that other prosecutors in the court rooms have to assist their
colleagues and make decisions on their behalf.
Often delay caused by ourselves is missing files or unavoidable matters such
witnesses failing to attend. Delay also occurs due to the lack of resources within
the CPS to deal with all matters
Short staffing and a move for the local CPS to another office have caused delays
in responses to correspondence, service of primary disclosure and affected their
readiness for trial.
Failing to respond to calls and letters and being completely noncommunicatable
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
21/44
21www.lawsociety.org.uk
However in response to the last comment a prosecutor reveals:
And there were general criticisms of the way in which the CPS operated as an
organisation:
3.3 Delays attributed to the Defence solicitor
Again, as the majority of respondents were defence solicitors, a considerably smaller
pool of people answered the questions in this section. Over one half of all respondents
(52.7%) said they had had no dealings with the defence in the past two weeks.
Table 5: Delays attributed to the Defence solicitor
I am prosecution. Defence writing to the wrong department, but the CPS have
delayed in sending the post to me. Also our post room is atrocious. Can take
days for post to be sent to you from a room 3 floors down.
There is considerable general delay caused by the prosecution as a result of the
way the work in the CPS is presently organised .The present system of hub
based working is hopelessly inefficient. It involves massive duplication as a
result of no individual lawyer having responsibility for a given file so each
lawyer dealing with a file has to read the whole file, as does the next lawyer to
deal with it etc etc. The lack of file ownership and personal responsibility
means that files are not dealt with thoroughly, defence requests are not dealt
with quickly and often cases have to be resolved on the day of the trial.
no. %
Defence solicitor unable to take instructions from
defendant in custody 36 31.9
Defence solicitor called away from court 29 25.7
Defence solicitor failed to comply with court order 25 22.1
Defence representative at court without file 16 14.2
Defence solicitor failed to comply with disclosure
obligations 14 12.4
Defence solicitor failed to arrange an interpreter 4 3.5
Other 63 33.0
[Base 113]
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
22/44
The most common cause of delay attributed to (but also experienced by) defence
solicitors was an inability to take instructions from a defendant who was being held in
custody; this question of access to the client or an interview room had been an issue
for almost one third (31.9%) of all respondents to this question. This had caused delay
for 40% of prosecutor respondents, compared with just 7% of defence solicitors.
Respondents said:
Just over one quarter (25.7%) of respondents who attributed delays to the defence
solicitor had been required to wait when the solicitor was called away from the court
room. This is a greater proportion than the 12.2% who had been left waiting whilst the
prosecutor left the court room in their supervisory capacity.
Defence solicitors were happy to use the freetext space on this question to assert that
delays were very rarely attributable to defence solicitors. However, the reality
appeared that those defence solicitors acting under legal aid were frequently required
to request an adjournment whilst they waited for the decision on their legal aid
application:
Adjournments needed for defence expert reports, legal aid and owing to a particular
advocate being committed to more than one courtroom at the same time.
Web Survey
22 www.lawsociety.org.uk
I am often unable to take instructions on cjsss days due to lack of interview
rooms and volume of cases.
Instructions not taken so no pleas can be entered. Defendants failing to instructsolicitors until a day or so before the hearing despite all disclosure being made
to them. Defence solicitors failing to request medical reports when an
adjournment has been granted for this sole purpose.
Clients do not respond to letters to come in and give instructions so these have
to be taken at court, necessitating delays.
As a defence lawyer only delay caused by me is adjourning a case as I do not
have legal aid either because client cannot provide financial details or as court
have a 2 week backlog in dealing with applications
The only delays witnessed were due to Legal Aid not being granted and an
adjournment sought by the defence. Magistrates courts routinely have a 3
week backlog on routine applications. If involves additional info e.g.
payslips/bank statements-longer.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
23/44
23www.lawsociety.org.uk
Changes to the legal aid means-testing system were one of the main requests by
respondents, including the speculation that solicitors should not be required to attend
court at all until they knew the outcome of their application.
3.4 Delays attributed to Prison transportation
Under one half (42.4%) of all respondents had experienced delays when waiting for
prisoners. The two most common causes of delays cited by these individuals were
waiting for prisoners to be transported to the court building (70.2%) or from cells to
the courtroom (52.9%).
Table 6: Delays attributed to Prison transportation
Waiting on the arrival of a prisoner at the courthouse was expressed as causing delay
by over one third (34.3%) of all defence solicitors, compared with 16.4% prosecutors.Three companies which provide prison transportation services were criticised for delay
in transporting prisoners to the court building. Freetext comments gave the impression
that at times prisoner transportation could be a bit of a shambles, with prisoners being
sent on the school run around various prisons and courts before arriving (late) at the
relevant courthouse. Equally, there was no guarantee that prisoners being held nearby
would arrive at the court sooner than those brought from much further away. Bad
weather was also seen to hamper attempts to transport prisoners.
One main and consistent delay seemed to be the inability to ensure prisoners were in
the right place in time for the 10:00 am court start time.
no. %
Prisoners arrived late at the courthouse 73 70.2
Delay moving prisoners from cells to courtroom 55 52.9
Other 36 34.6
[Base 104]
Any prisoner coming from a prison other than local remand prisons are produced
hours late. There is always a significant wait for prisoners to be produced in the
dock from the cells.
Overnight prisoners frequently arrive late
Arriving after 10.00am (when court starts sitting) is any every day occurrence.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
24/44
One solicitor was completing this survey whilst at court, waiting to see if his detained
client would turn up. Beyond the delays themselves, he criticised the lack of
communication which meant solicitors were often left hanging around without much
idea of what was happening:
In some instances it was the solicitor who was required to travel due to a lack of
facilities at the local courthouse:
Respondents were also critical that, even once in the custody of the courthouse, it
could take up to ten minutes for a defendant to be brought from the cell area once a
case had been called. This delay was an issue for 24.4% defence solicitors and 12.7% of
prosecutors. This may not seem a significant delay on its own, but the accumulation of
such delays across the day started to add up. Such delays were mainly attributed to
staff shortages:
Web Survey
24 www.lawsociety.org.uk
Insufficient cell staff to bring client into court!
The custody Court dealing with overnight prisoners wishes to start at 10am but
frequently prisoners do not get unloaded from the vans until shortly before
10am. This is despite [transport company] claims that most prisoners arrive at
about 9am. This is simply untrue.
1st day of trial at XXXX Crown Court the defendant was not produced from [far
away prison] until 15.25. The trial was a fixture with 10am start. The following
day the defendant was produced about 45m late from [nearby prison].
Our court does not have video link, so we have to travel to a court 25 miles
away to do video remands. A 5 minute hearing takes all morning when including
travel and waiting time.
I am currently at court waiting for a client who is awol in custody. Has been
arrested for breach of bail in our town, but the case is in another court in the
same cjs area of XXXX. Police and court cant seem to decide if he should be
here in [town1] or in [town2]. Currently 10.35 and he isnt at either court. We
have an agent on standby who will need an hour to get to court if client takento [town2]. Police should be communicating with us but seem to find it
impossible to communicate (the job of the custody sergeant I would say).
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
25/44
25www.lawsociety.org.uk
Health and Safety regulations were another cause of delay in the transportation and
handling of prisoners. In this instance delays were exacerbated by a shortage of
professional security staff as civilian guards were limited in their duties:
Logistical problem- lack of staff and resources for all parties.
Lack of support staff in cells has led to delays in bringing defendants up into
court room from cells.
Prisoner not brought to court and then DJ ordered he be brought to court and
we had to wait until 12pm. Not enough staff to bring prisoner up from cells to
court so we had to wait about half an hour (not unusual)
Ridiculous health and safety requirements of civilian prison guards meant that
only one prisoner could appear in court at a time so in a case where there were
two defendants in custody we had to hear the whole case twice (including facts
and mitigation) instead of just once.
Delay caused by routine application by civilian prison guards for defendant in
custody to be handcuffed when giving evidence in the witness box for health
and safety reasons. This application rarely succeeds, but does waste a lot of
court time.
In sealed docks, why do [prisoners] need to be returned to cells during every
adjournment? The bench should be made aware/ trained in methods of dock
management, something [prison transport company] could teach in an hour.
Routinely young people who are transported separately arrive at court late and
insufficient security staff to accompany them up to court
Time spent moving prisoners from cells to court is a joke. What are all those
[prison transportation] officers sat around reading the paper supposed to be
doing?
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
26/44
3.5 Delays attributed to the use of witnesses
Under one half of all respondents (45.3%) had cases involving witnesses in the past two
weeks. Of these respondents, well over one third (39.8%) had experienced delays when
the prosecutor left the courtroom to call their own witnesses.
Table 7: Delays attributed to use of witnesses
A shortage of staff impacted on the time taken to guide witnesses from the witness
room to the courtroom; respondents gave many examples of where the prosecutor had
to physically go and collect their witness due to a lack of ushers or other appropriate
staff:
It appears that witnesses failing to attend court at the correct date and time are a
common occurrence and also a frequent cause of delay (cited by 32.7%). Whether a
witness had merely agreed to attend or had been issued a summons made little
difference in whether they actually turned up at court this was particularly so in
cases of domestic violence:
Web Survey
26 www.lawsociety.org.uk
no. %
Prosecutor leaves to call witness 45 39.8
Witness failed to attend 37 32.7
Defendant fail to identify witness to call 13 11.5
Other 43 38.1
[Base 113]
In my local courthouses for a number of months the tannoy system has been
broken. Prosecution witnesses cannot be expected to find their own way to the
courtroom and in the absence of an usher the role of collecting and returning
witnesses falls to the prosecutor. With witness rooms some way away this can
take up to five minutes or longer.
XXXX youth courts are as far away from the witness room as it is possible to be
and when there is no usher it is a nightmare dealing with witnesses.
No usher or witness care available so Prosecutor had to go to and from witness
room to get witnesses to court.
Witnesses have failed to attend in a number of trials, including a witness who
had been served with a witness summons.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
27/44
27www.lawsociety.org.uk
Delays caused by the failure of witnesses to attend court were explained to be
exacerbated in cases of a sensitive nature, such as domestic violence. More than one
respondent bemoaned the fact that the prosecutor did not withdraw the case from the
court list on hearing their witness would not attend, but instead kept the listing in case
the witness changed their mind at the last minute. Whilst understandable in cases of
this nature, it meant for much time spent waiting around without knowing for certain
if the trial would proceed:
Last week, kept waiting for 2 hours, waiting as CPS hoped that aggrieved would
turn up in DV trial despite aggrieved making it very clear to police that she
would not attend. Indeed, this was the second trial date; the aggrieved had
made her position clear on the last occasion too.
Respondents were also critical that cases were delayed because the defendant had
failed to identify the witnesses to be called:
The Crown has failed to identify before trial that witness statements were
needed and these witnesses needed to attend, causing the trial to be vacated.
The defence failing to identify the witnesses they require. Ive also had to deal
with several police officers turning up five minutes before the trial without
having even read their statements.
3.6 Delays attributed to court staff/systems
Just over three quarters of all respondents (75.5%) had attended court in the past two
weeks. Of these, over one half had experienced delays when the court had failed to
make a decision or when multiple cases had been listed simultaneously (59.0% and57.9%, respectively).
Witnesses not attending when confirmed to attend.
With a worrying degree of frequency domestic violence witnesses still do not
attend court and cases are either adjourned or dismissed only at the day of trial
itself.
Witnesses reluctant to attend and do not show up on day of trial. This pertains
only to prosecution witnesses. Cps allows case to remain listed just in case
witness has change of heart. Most prevalent in domestic violence cases.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
28/44
Table 8: Delays attributed to court staff/systems
Issues around the listing of cases were a significant problem, cited by many
respondents. Multiple cases were listed simultaneously, courts took no account of the
preference for listing expressed by solicitors, and those awaiting decisions on legal aid
applications were pushed to take unrealistic slots:
There is pressure to take the first list available. The Legal Aid application process takes
too long. 1st appearance dates should reflect the delay in Legal Aid applications.
Web Survey
28 www.lawsociety.org.uk
no. %
Failed to make a decision 108 59.0
Multiple case listings at the same time 106 57.9
Not effectively listed case 83 45.4
Preferences to listing not taken into account 59 32.2
Failed to arrange an interpreter 22 12.0
A clients co-defendants or solicitors failed to
attend court 13 7.1
Other 49 26.8
[Base 183]
The delay in processing our legal aid applications is still huge and doesnt seem
to be improving.
Unreasonable delays in processing legal aid applications and a refusal to
communicate with defence solicitors in order to advise of result of legal aid
applications. Phones are routinely left unanswered in the legal aid departments
of virtually all London courts.
Legal Aid particularly slow at some courts. There appears to be a huge backlog.
We have submitted legal aid at the first appearance, and the case is adjourned
for 2 or even 3 weeks and we still have no decision on legal aid.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
29/44
29www.lawsociety.org.uk
Delays attributed to multiple cases being listed at the same time were cited by similar
proportions of prosecutors and defence solicitors (45.5% and 44.8%, respectively).
Defence solicitors were more likely to encounter delays when their preference for case
listing was not taken into account: 27.9% compared with 14.5% of prosecutors.
Respondents expressed concerns over the court strategy for listing trials, which seemed
similar to airlines process of overbooking flights to avoid empty seats. Courts booked
multiple trials for the same time hoping another court would be free to catch any
excess:
As with other parts of the process, communication again appeared to be a concern:
Trials are routinely double or triple listed. Every week many are removed from
the list for lack of court time.
The Court also overlists in one courtroom, hoping that another court will free
up, where the listings could be spaced out over the week more evenly.
There have been two cases where the court have been informed that
defendants and witnesses are not available for proposed trial dates, but have
listed the cases anyway.
It is common for trials to be double-booked. The Court will deal with the case
that is ready.
I am sick of overlisting. The prosecutor is the only one who suffers. Im
particularly sick of pointless late nights and early mornings when if the court
listed properly, I would work office hours. I also think we shouldnt have to
explain the courts failings to tearful or angry victims and witnesses, who are
treated shoddily by a court that cares more about statistics than the community
it is supposed to serve.
We will call the court on some occasions and get passed from one person to
another over and over. They deny receiving letters even when we have
confirmed receipt and got a name. We have court staff putting the phone down
on us if they dont know the answer to a question asked. They pretend to be
trying to find the answer and then the phone just goes dead.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
30/44
For some respondents attendance at court had been the start of a snowball effect of
increasing delays and costs:
3.7 Delays attributed to other agencies
Over one half of respondents (53.5%) had not dealt with any other agencies during thepast two weeks. For those who had, contact was typically with the probation service
and/or an expert witness both were remarked to contribute delay to a case, but the
probation service significantly so.
Table 9: Delays attributed to other agencies
Respondents commented that it could be difficult to get a final report from an expert
witness and this could delay matters. The use of expert witnesses also caused a delay if
the defence had to submit an application for funding to use the expert witness.
Web Survey
30 www.lawsociety.org.uk
After waiting for the interpreter, adjourned for lunch, then delayed because of
long lunch, then too late to start so adjourned for three months.
The practice of Magistrates taking coffee breaks during the morning sessions.
These often take 10-20 minutes when the advocate is waiting - at cost. There
are often several advocates per court who have to wait - each with consequent
cost to the legal aid or other budget.
Failure to list cases when previously adjourned to date and client attends in
answer to bail and for bail variation, but no court or cps papers as result of
listing failure. Cases dealt between 3 different locations - listing, files and
hearings!!
no. %
Waiting for probation service pre-sentence report 71 54.6
Expert witness failed to provide report 20 15.4
Other 27 20.8
[Base 130]
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
31/44
31www.lawsociety.org.uk
However, the Probation Service came in for a much more targeted attack. The
respondents indicated concerns in relation to the Probation Service either not supplying
pre-sentence reports in a timely manner, or of sending in reports which were
contradictory or plainly wrong. This was an issue cited by over one third (34.3%) of all
defence solicitor respondents and 14.5% of prosecutors.
As with prisoner transportation, solicitors were critical of a lack of communication
which led to delays which could have been avoided:
The system of expert reports especially in relation to the mentally ill is a
shambles. Psychologists report ordered by the court, but massive waiting list.
Defendant in custody.
Preliminary rather than final report prepared by defence expert
Probation - no report because the probation officer failed to attend the client in
custody. Further three week adjournment in custody requested!
Case needed to be adjourned for probation to prepare a report that had not
been prepared due to lack of staff
The Probation Service wrote to a client at the address he was excluded from so
he missed his appointment. Also they provided a fast delivery report and full
PSR on the same client that had contradictory information about whether the
clients suspended sentence order had been activated or not.
Professional experts getting harder to get a response from. Much harder.
Getting funding for expert reports means defence applications to adjourn
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
32/44
In respect of the probation service, respondents reported instances of staff
shortage/sickness, internal policies and unnecessary bureaucratic mechanisms all of
which caused significant delays to cases and hearings:
One respondent called for a return Probation Officers at court to locate bail hostels:
Web Survey
32 www.lawsociety.org.uk
Probation appointment not sent to defendant due to pressure of work on
probation service. Whilst this is understandable, it is inexcusable for the
probation, as a key stakeholder, to wait for all the parties to attend court
before stating that no report is available. It should be incumbent on the
probation service to advise the court and the defence in advance if there is
going to be a non-report.
I wish we could go back to the system of Probation Officers at court finding such
bail hostels as there are left (which seemed to have been traded off as
Probation etc hostels). The central system for finding a bail hostel is hopeless.
We have many clients in custody lacking an address, who cannot remember
anyones phone number because the police have inevitably seized their mobile
phone.
Probation failed to provide a PSR and indeed failed to notify the court in
advance that there would be no PSR (which they knew 11 days before the
hearing) and thus there was a wasted hearing. Matter could have beenadjourned without need for all parties to attend.
Stand down reports cause inevitable delay. There appear to be insufficient
experienced probation officers to manage the volume of reports asked for by
the court.
Probation due to their internal policies failed to provide a stand down report in
relation to one of my clients.
The Probation Service often fails to visit custody prisoners. Probation staff
sickness seems to be soaring.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
33/44
33www.lawsociety.org.uk
3.8 Summary of delays
Below is a table of the most significant delays by each organisation/party, as
experienced by respondents. However, it is oversimplifying the whole process to
apportion blame for delays in this manner. All parties in the chain from police and
prisoner transportation to prosecutor and defence solicitor, court staff, witnesses and
other agencies are complexly interlinked so that a delay at any one point may
unavoidably cause delays elsewhere in the process. For example, one respondent said:
Police have not provided the papers to the prosecution so no papers at court for the
defence.
Table 10: Delays by organisation/party
It should also be remembered that the majority of respondents to this survey are
defence solicitors and therefore disposed to attribute problems to the actions of the
opposing counsel.
no. % of all
respondents
citing this
Prosecutor failed to comply with disclosure obligations 124 50.6
Court failed to make a decision 108 44.1
On accompanying a client who has been bailed back
to the police station, the police require further time 94 38.4
Prisoners arrived late at the courthouse 73 29.8
Waiting for probation service pre-sentence report 71 29.0
Prosecutor leaves to call witness 45 18.4
Defence solicitor unable to take instructions from
defendant in custody 36 14.7
[Base 245]
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
34/44
At the end of the survey respondents were invited to comment more generally on their
experiences of delays in the criminal justice system.
Clearly there are issues in the operation of the criminal justice system, some of which
are attributable to the actions/lack of actions of an individual and others to the
processes and working mechanisms of whole organisations. The two overarching themes
which came up in this section were (i) the delay (and knock-on effect) in getting a
decision on a legal aid application and (ii) the fact that courts did not appear to be
held accountable for their failure or poor performance.
The 72.6% of respondents who are defence solicitors were keen to use this space to put
the system right:
The delay whilst waiting for a decision on a legal aid application could result in many
unnecessary trips to court to adjourn the case yet again. The issues solicitors raised
around the way cases are listed and the delays waiting for the case to be called
exacerbated the delays and costs of waiting for legal aid approval.
Web Survey
34 www.lawsociety.org.uk
4. Final words
The only group properly doing their job in the system at present is the defence.
If we behave as the courts, police and cps do, we would face costs and
enormous criticism.
My main beef is with the means tested legal aid application. It takes a long time
and delays all matters. We are under strict instructions not to act until it is in
place, yet it is inconsistent in its delivery. The rest is minor hiccups in the road
we must all endure due to human failings. But make one change-DJs
everywhere. You could close every mags court in London if you had a fully DJd
court at every point on the compass. Lay benches are a false economy.
It is often very difficult to get through to legal aid departments at courts via the
telephone. The CPS are very slow at responding to correspondence regardless of
how it is sent. Often when a fax is sent to them we will call to check it has
been received and often we are told it has not been received despite checking
we have sent it to the correct fax number.
Listen to the Defence Solicitors. We can identify the problem areas for you!
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
35/44
35www.lawsociety.org.uk
Some respondents also reported wasted time trying to get in contact with the
prosecutors:
Respondents were critical that the courts did not seem to be held accountable for their
actions in the same way that prosecutors and defence solicitors are:
Legal aid still has not been granted despite assurances that the matter would be
looked at. An inordinate amount of time has been wasted on the phone trying to
speak to and then reason with employees of the means assessment team.
It is very difficult to get in contact with anyone from the CPS in order toprogress cases (other than very serious offences which have specialist units) It
is often impossible to get through to someone who is supposed to be dealing
with the case, and that person is not qualified to make any legal decisions as
regards the case.
It is practically impossible to speak to a prosecuting lawyer other than by listing
cases for mention. when telephoning the CPS I am always put through to an
extension that is not answered, voicemails are never returned or if I do get
someone to pick up a phone am told they are not dealing with a case and
cannot help. It is normal to spend over an hour on each attempt to contact
someone before eventually abandoning the attempt.
An inability to speak to, let alone negotiate, with a CPS lawyer, so that
everything has to be resolved (or not) at court and cases are listed for mention
unnecessarily, huge delays at court occur (especially at the beginning of trials.
Court failures to deal with matters do cause delays but are brushed under the
carpet whilst prosecution and defence errors are subject to stringent scrutiny.
The cps and the court service should be a meritocracy. If I handled my clients
cases in the same way that they handle their cases I would have no clients.
There is very little accountability and no determination to do a good high
quality job.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
36/44
Despite criticisms of the courts performance and lack of accountability, several
respondents felt that one solution to delays would be to give courts more power and
enable them to punish those at court who were unprepared or in non-compliance:
Dissatisfaction with delays and the associated costs suggested a significant impact on
the desire of defence solicitors, in particular, to continue to work in this field or, as
one respondent explained, of the public to continue to bring cases:
Web Survey
36 www.lawsociety.org.uk
Courts should be more balanced and more proactive in case management. They
should have the power to dismiss cases where there has been failure to comply
with directions and they should exercise such power ruthlessly rather than
extend time limits or turn a blind eye to blatant failures on the part of a failing
organisation, the CPS.
The prosecution hardly ever comply with the CPR or statutory time limits. The
courts are complicit in encouraging this behaviour by tolerating it. It is highly
unusual not to have a wasted trip to the police station as a result of police
failing to communicate about a bail back.
In any case where there is a delay caused by any agent in the criminal justice
system, whether defence/prosecution/police/probation/court/[prison transport
company], the court should be obliged to record the reason for that delay. A
report should be prepared at regular intervals so that the causes of delay are
identified and sanctions given.
There should be a default expectation that where a party has caused a delay or
inefficiency they should be expected to pay the costs of that mistake. Without
such sanctions, the behaviour will never change.
I did not sign the latest criminal contract as I was so fed up with the
inefficiencies in the criminal justice system & the new contract was entirely
unreasonable.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
37/44
37www.lawsociety.org.uk
Comments in this survey reveal not only where delays are prevalent in the criminal
justice system, but also the complexity of the system as a whole. A delay early in the
process can have severe ramifications for how a case proceeds and where further
delays may result. The impact of delays was felt not only in the amount of time taken
to resolve a matter, but in the amount of dead time spent waiting at police stations, in
courtrooms and for legal aid decisions. Whilst all parties involved were affected to
some extent by the delays, defence solicitors were most affected in terms of costs, as
they were more often the ones left waiting in situations where they were not being
paid for their time and had no recourse to claim back for time which could have been
productively spent elsewhere.
Respondents suggested ways in which the system could be improved. In many instances
simple matters could be implemented without major disruption or an overturning of
current processes. For example, a simple courtesy of the police to meet the time they
have pre-arranged with solicitors or to communicate at the earliest opportunity whenthey realise they can not meet the time would save many wasted journeys. Defence
solicitors called for a way to speed up decisions on means-tested legal aid and that
they not be required to attend court before the decision was made; thus negating the
need to call for multiple adjournments and the delays associated with attending court
to make the request. Overall, a lack of communication seemed to pervade all stages of
the process. There were many examples cited where one party had known of a likely
delay in supplying information, but had either not communicated this delay to all
others involved or had left the notification far too late to be effective. The aggregate
cost of delays to the criminal justice system in terms of empty court time, solicitor
waiting time and associated financial losses suggest many changes which are needed,
with little apparent reason why certain changes could not be made sooner rather than
later.
My wife is appalled by the enormous amount of administrative cost which has
been generated by one relatively small case which could have been dealt with
far more efficiently had it been dealt with quickly after the event, and in the
circumstances that have now occurred has gone on for nearly a year and she
fears will go on for longer. She is so concerned by it that she would hesitate
before reporting a crime in the future.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
38/44
ABE Achieving best evidence
AI Advance Information
AP Associate Prosecutor
BTR Bailed to return
CJS Criminal Justice System
CJSSS Criminal Justice: Simple, Speedy, Summary
CJU Criminal Justice Unit
CMH Case management hearingCPR Criminal Procedure Rules
CPS Crown Prosecution Service
DCW Designated case worker
DSCC Defence solicitor call centre
IOJ Interest of justice test for legal aid
MG5 Case summary form
OIC Officer in Charge
PCMH Plea and case management hearing
POCA Proceeds of Crime Act
PTR Pre-trial
TIC [Offences] taken into consideration
TWOC [Vehicle] taken without consent
VIPERVirtual identity parade
YOI Young Offenders Institution
Web Survey
38 www.lawsociety.org.uk
APPENDIX 1Glossary of Terms
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
39/44
39www.lawsociety.org.uk
Survey of criminal solicitors
Q1. How long have you been a criminal solicitor? _____ years ____ months
Q2. Are you a
I Prosecutor
I Defence solicitor
I Other (please specify)
Q3. In which region are you based?
Q4. On a scale of 1-10, where 1 = not at all typical and 10 = exactly typical,
how typical have the past two weeks been in terms of your normal day-to-daycriminal law casework?
Q5. Have you experienced any delays in your criminal law cases in the past two
weeks?
I Yes Go to Q5a
I No Go to Q14
Q5a. If yes, which of the following do you deem responsible for causing the most
significant delays? (tick one only):
I The police
I Court staffI The prosecution solicitor
I The defence solicitor
I Prison transportation
I Other, please specify
Q6. Police
In the past two weeks, have you experienced any of the following in your
dealings with the police?
I No dealings with the police in the last two weeks. Go to Q7
I A police station job has been delayed because an interpreter wasntavailable.
I On accompanying a client who has been bailed back to the police station,the police require further time.
I The police have not provided the required Advance Information to the CPSto enable serving it on the defence in time for an effective first hearing
I The police have failed to arrange an interpreter to attend court
I Other delay caused by the police
APPENDIX 2The Survey
Please describe your experience, in the last two weeks, of delays which are
attributable to the police:
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
40/44
Q7. The Prosecution
In the past two weeks, have you experienced any of the following in your
dealings with the prosecution?
I No dealings with the prosecution in the last two weeks. Go to Q8
I The prosecution representative at court does not have their file.
I The prosecution has failed to comply with a court order, and requires anadjournment.
I A prosecutor is called away to offer advice in relation to a case in anothercourtroom.
I Proper instructions have not been taken by the prosecutor making anadjournment necessary.
I The prosecution has failed to comply with its disclosure obligations.I The prosecution failed to arrange the attendance of a
witness/intermediary/interpreter/expert
I Other delay caused by the prosecution
Q8. The Defence
In the past two weeks have you experienced any of the following in your
dealings with the defence, including the co-defence?
I No dealings with the defence in the last two weeks. Go to Q9
I The defence solicitor at court does not have their file.
I The defendant, or defence solicitor, has failed to comply with a courtorder, and requires an adjournment.
I A defence solicitor is called away to offer advice in relation to a case inanother courtroom.
I Proper instructions have not been taken by the defence solicitor making anadjournment necessary (please note if this was because it was impossible
to take instructions from a defendant in custody.)
I The defendant has failed to comply with his or her disclosure obligations.
I The defence solicitor has failed to arrange the attendance of awitness/intermediary/interpreter/expert
I Other delay caused by the defence
Web Survey
40 www.lawsociety.org.uk
Please describe your experience, in the last two weeks, of delays which are
attributable to the prosecution:
Please describe your experience, in the last two weeks, of delays which are
attributable to the defence:
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
41/44
41www.lawsociety.org.uk
Q9. Prisoners
In the past two weeks, have you experienced any of the following in
respect of prisoner transportation?
I No cases have required prisoner transportation in the last two weeks.Go to Q10
I Prisoners have arrived late at the courthouse, meaning that the casecannot be called at the correct time.
I There has been a delay in moving the prisoner from cells to thecourtroom.
I Other delay caused by the transport of prisoners.
Q10. Witnesses
In the past two weeks, have you experienced any of the following in your
use of witnesses?
I No cases have required the use of witnesses in the last two weeks.Go to Q11
I In a trial hearing, witnesses have failed to attend because they werenot warned.
I The prosecutor has had to leave the room to call a witness from thewitness room.
I The defendant has failed to identify prosecution witnesses it requiresto be called.
I Other delay in the use of witnesses.
Q11. Court
In the past two weeks, have you experienced any of the following in your
dealings at court?
I Have not attended court in the last two weeks. Go to Q12
I The Court has listed two or more trials at the same time, and yourtrial listing has therefore had to be adjourned.
I The court has failed to provide an interpreter.
Please describe your experience, in the last two weeks, of delays
attributable to the transportation of prisoners:
Please describe your experience, in the last two weeks, of delays
attributable to the use of witnesses.
-
8/3/2019 Law Society Criminal Justice Report_v5 (2)
42/44
I The court has not effectively listed the case, resulting in delay.
I The preferences as to listing date of the solicitor advocate orbarrister have not been taken into account.
I The court listing of the case has led to delay or inefficiency.
I The clients co-defendants and/or their solicitors have failed toattend court, and the case must be adjourned.
I The court has failed to make a decision in relation to a cli
top related